chapter
Legal Sufficiency and
Other Legal Considerations
content
26.1
Legislation, Regulations, and Guidance
26.2
Legal Sufficiency
26.3
Administrative Record
29
chapter
29
Legal Sufficiency
and Other Legal
Considerations
T
ransportation projects attract attention and
•• Administrative Procedures Act, which governs the way
legal action from an assortment of stakeholders
federal independent agencies and executive department
for a wide variety of reasons. Transportation
agencies propose and establish regulations
agencies, including the District of Columbia Department
of Transportation (DDOT) and the Federal Highway
Administration (FHWA), have a variety of procedures to
ensure that their environmental efforts comply with the
law and to minimize the likelihood or cost of adverse legal
action.
29.1Legislation, Regulations, and Guidance
•• National Environmental Policy Act of 1969 (NEPA) as
amended
•• Regulations of the Council on Environmental Quality
(CEQ), 40 Code of Federal Regulations (CFR) parts
1500–1508 implementing NEPA
•• Section 4(f ) at 49 United States Code (USC) 303 and
23 USC 138
•• 23 CFR 771.125(b), which requires a formal legal
sufficiency review for any final Environmental Impact
Statement (EIS) issued by FHWA
•• 23 CFR 771.135(k), which requires a formal legal
sufficiency review for any final Section 4(f ) report
issued by FHWA
29.2Legal Sufficiency
The FHWA review for legal sufficiency is required by
regulation for final EIS documents and is intended to
assess and ensure the legal adequacy of the federal decisionmaking process. These reviews are a normal and necessary
part of the project development process.
Chapter 29 – Legal Sufficiency and Other Legal Considerations
Legal sufficiency depends on the substantive content,
and FHWA General Counsel attorneys. These attorneys
procedural compliance, and the overall document quality
are familiar with the interpretations of NEPA law by the
and readability. These reviews assist FHWA and DDOT
federal courts with jurisdiction over the states for which
in understanding the litigation risks associated with a
they are responsible.
particular project, environmental documentation, and
administrative record. A legally sufficient NEPA document
does not eliminate the risk of legal challenge or guarantee
success if a project is litigated.
Legal sufficiency reviews assess the document from the
perspective of legal standards and litigation risk, rather
than technical adequacy, which the attorney assumes to
be correct and complete. The document is analyzed from
The two key themes related to legal sufficiency of NEPA
the perspective of whether it was developed properly and
documents are:
answers the substantive questions that reasonably could
•• The legal sufficiency review
•• The common trouble spots related to the legal
sufficiency of NEPA documents
be asked. The review focuses on the adequacy of the
discussion of essential NEPA and project decision-making
elements such as purpose and need, alternatives, scope of
environmental resources and impact analysis, interagency
coordination, public involvement, and responses to
29.2.1 Legal Sufficiency Review
The legal sufficiency of NEPA documents is an important
element of the overall NEPA project development process
for federally funded transportation projects. It involves
comments.
Legal sufficiency review comments generally focus on:
•• Compliance with applicable laws, regulations,
identifying and addressing potential legal risks of proposed
Executive Orders, or agency guidance. These are
projects. DDOT working though the division project
substantial comments, which require appropriate
engineer, seeking expert legal advice early and throughout
attention.
the project and document development process is likely
the best way to achieve the broader purposes of legal
sufficiency.
•• Substantive questions or comments. These may
include, for example, comments on the adequacy of
supporting information related to the elimination of
Legal sufficiency reviews are normally performed
alternatives or analysis of Section 4(f ) feasible and
concurrently with the FHWA Division Office routine
prudent alternatives.
review of the administrative draft of a Final EIS prior to
its approval and formal circulation. However, depending
on project complexity, controversy, and related issues, the
review may be initiated at the Preliminary Draft EIS phase,
the Draft EIS stage, or earlier. For DDOT projects, legal
sufficiency review is provided by DDOT General Counsel
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•• Consistency with FHWA policies. This may include,
for example, comments related to mitigation measures
or evidence of coordination with other agencies and/or
the public.
Chapter 29 – Legal Sufficiency and Other Legal Considerations
•• Editorial comments. Generally, comments in this
•• Failing to explain the alternative development,
category are opinions on ways in which the document
screening, and evaluation process adequately so that it
can be improved.
can be found rational, reasonable, and complete
29.2.2 Common Trouble Spots
The common issues of legal sufficiency and litigation
risk are also those elements of the NEPA process that are
essential to environmental compliance and project decision
•• Eliminating alternatives without adequate or
appropriate analysis to support the decisions
•• Eliminating alternatives based on outdated information
or older studies that may no longer be reliable
making. These generally include the following issues.
•• Failing to reconsider alternative screening decisions
Purpose and Need
later in the project development process when new
Project purpose and need is the linchpin of any NEPA
information becomes available
study and is often a point of criticism and target in
litigation. Common concerns include:
•• The project purpose and need are defined too narrowly.
•• Over-reliance on weighting and scoring techniques.
Such numerical rating systems can be useful for
screening alternatives, particularly if numerous
This can lead to criticism that the range of reasonable
alternatives are being considered; however, the results
alternatives was improperly narrowed.
of these techniques can be misleading if important
information is not available or if too much or too little
•• Project goals are established either vaguely or too
broadly.
•• Local agencies’ policy and goals established in
transportation, land use, and other relevant planning
studies are not addressed in the purpose and need
statement.
weight is given to certain factors. Scoring techniques
should be used appropriately and with care.
Project Segmentations
The FHWA NEPA regulations require project alternatives
to have logical termini, have independent utility, and
not restrict consideration of alternatives for reasonably
Alternatives Screening and Analysis
foreseeable future transportation improvements.
Related to purpose and need, the development and
Study Area and Boundaries
screening of alternatives is a frequent cause of criticism
and target in litigation. The record must support the
development and elimination of alternatives. Some
common concerns include:
Appropriate study area and environmental resource
boundaries are critical to the NEPA process, yet are often
described vaguely or without clear rationale. The study area
is sometimes defined by limited boundaries, despite the fact
that project impacts extend over a wide geographic area or
Chapter 29 – Legal Sufficiency and Other Legal Considerations
include different and overlapping environmental resource
may introduce inconsistency or result in responses that fail
boundaries.
to address the substantive issue.
Indirect and Cumulative Effects Analysis
Responses to Resource Agency Concerns
The indirect and cumulative effects analysis required
For large and complex projects, tension or disagreement
by CEQ regulations is often the target of criticism and
can develop between the lead agency and resource agencies.
litigation.
It is important that relevant and reasonable resource
Compliance with Procedural Requirements
agencies’ concerns be considered and adequately addressed.
Courts often look to resource agencies as subject-matter
The National Historic Preservation Act of 1966 (NHPA)
experts in the public sector, and failure on the part of the
Section 106, Employment Standards Administration
lead agency to adequately respond to their comments or
(ESA) Section 7, and other procedural processes require
address their concerns can present serious problems during
the lead agencies to consult with resource and regulatory
litigation.
agencies concerning project impacts to specific resources.
One way to address this concern is to include a summary
Accounting for New Information or Circumstances
in the relevant section of the NEPA document that
Essential information related to the project analysis and
highlights the consultation process, with key dates,
decision making must be kept current. Project studies
participants, and reference to related documents in the
should be continually updated, with new information
record.
incorporated into the document and administrative record
Compliance with Substantive Requirements
Legal sufficiency reviews will look at the substantive
requirements that will potentially influence the ultimate
project decision. Two important requirements are Section
4(f ) and Section 404, both of which require specific
findings prior to approval of the project or permit.
Responses to Public Comments
For some high-profile projects, public comments on the
Draft EIS can be voluminous and substantive. Responding
to these comments can be challenging and time
consuming. In many cases, responses will be prepared by a
team, which can make the process more efficient but also
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as it becomes available.
29.3Administrative Record
The administrative record is the written record supporting
the agency’s decisions and decision making. An
administrative record plays an important role if a project is
litigated. The administrative record must show that:
•• Agency decision makers understood the legal standard
applying to the decision
•• The standard was applied properly; that the agency
considered the proper information, evaluated all of the
factors requiring evaluation, and considered relevant
Chapter 29 – Legal Sufficiency and Other Legal Considerations
factors in terms of the legal requirements governing the
notes, electronic files (including all e-mail), and any other
action
information relied on be retained until all potential of
•• The action taken is reasonable
The Administrative Record should include all documents
and material directly or indirectly considered by the agency
decision maker in making the challenged decision. This
includes documents and materials that:
•• Cite whether they support or do not support the final
decision of the agency
litigation is past.
The administrative record needs to include privileged
information as well as nonprivileged information. Once
the record is compiled, privileged or protected documents
and materials may be redacted or removed from the
record. Ultimately, the administrative record should
include all documents, including those from DDOT, from
any consultants and subconsultants, from FHWA, and
those provided to the project team by interest groups, the
•• Were available to the decision-making office at the time
public, agencies, proponents, and opponents.
the decision was made
When compiling the administrative record, DDOT
•• Were considered by or relied upon by the agency
should:
•• Came before the agency at the time of the challenged
•• Search files
decision, even if the documents and materials were
not specifically considered by the final agency decision
maker
•• Provide both privileged and nonprivileged information
The administrative record can be organized in various
ways—in chronological order, by issue, or by type of
information. It should provide an index to allow readers
easy access. After FHWA counsel reviews the administrative
record, the FHWA must certify it. To have a complete
and thorough administrative record, it should be created
at the start of the project and continually updated. This
will help ensure that no information is lost and will help
enable organization of the information in a logical manner.
While this is the preferred path, even if it is not followed,
it is critical that all documents, correspondence, reference
material, meeting summaries, guidance considered, studies,
•• Search e-mail and backup tapes
•• Write facts and narrative
•• Put items in chronological order
•• Review court documents such as plaintiff’s statement
of facts
•• Serve as a resource
At the outset of litigation, this entire file is submitted to
the court, and the legal positions taken by the government
are based on this written record. Therefore, a good
administrative record should reflect what the agency did
and why it acted. The record must reflect how the agency
handled the information it received and developed.
Because the record must reflect the way the agency
handled negative information, include documents and
Chapter 29 – Legal Sufficiency and Other Legal Considerations
materials whether they support or do not support the final
determines that the incompleteness is based upon bad
agency decision.
faith, that improprieties may have influenced the decision
If the file is found to be inadequate after it is submitted
to the court, the government may be allowed to complete
maker, or that the agency relied on substantial materials
not included in the record.
the record, but this raises important questions about the
The DDOT Environmental Document Review Form
completeness of the entire record. A court may allow
provided in Appendix I should be used to ensure that
extra-record discovery, including depositions of agency
all documents needed for the administrative record are
personnel, and may allow court testimony of agency
available.
personnel. The court may allow discovery if the court
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